Manitoba Court Recognizes and Acknowledges Systemic Racism in the Sentencing of a First Nations Man

Justice Christopher Martin of the Manitoba Court of Queen’s bench issued a written sentencing decision on July 10, 2020 which recognized and acknowledge systemic racism against Indigenous people and importantly acknowledged the harm systemic racism has caused Aboriginal people generally; individually; and in particular the harm caused by systemic racism to both the victim and the offender in this case.

Justice Martin’s opening sentence of his decision, acknowledges and affirms the role that systemic racism imbedded in governmental policies and actions played in the tragic death of a First Nations women at the hands of her son.  He wrote:

In the early morning hours of June 22, 2018, the calamity of almost 150 years of government policy, actions and inactions affecting the Indigenous community of Berens River First Nation, bore down on a young Ojibwe man, Anthony McKay, and his mother, Shirley McKay.

Anthony McKay, a First Nations man from Berens River Manitoba plead guilty to manslaughter in the death of his mother, Shirley McKay. He was sentenced to four years of incarceration, plus three years of supervised probation. Mr. McKay was genuinely remorseful; accepted responsibility for his actions; was insightful into his behaviour and background; and had sought out treatment and support since his mother’s death.

Justice Martin found that Mr. McKay was shaped by a colonial systemically racist system that was “designed to “take the Indian out of the Indian”.  Importantly Justice Martin acknowledged the government’s culpability and the harm caused to Indigenous people, wherein he wrote:

It is well accepted that the Government’s role, since the early days of dealing with First Nations peoples, has had the effect of isolating, infantilizing, marginalizing, and traumatizing Indigenous societies …

Justice Martin specifically quoted from a Gladue report submitted to the Court which spoke to the oppressive policies of colonialism:

Indigenous people can attest they have been subject to policies of colonialism articulated to the enforcement of governments and foreign laws, implementing Indian Residential Schools (1831-1996) and Indian Day Schools (1920-1998) and the Sixties (60’s) Scoop (1950-1980), that severed the attachment of Canadian’s First People from their land, language, customs, mode of governance, and way of life. These oppressive systems had and have an ultimate impact on First Nation’s society; that have continued ….

He went on to further detail the systemic racism against First Nations and Indigenous people:

Further, Berens River First Nation was subject to the Indian Act of 1876, which made “status Indians” wards of the Crown and empowered Indian Agents with control over all aspects of daily life of Indigenous persons. A pass system was implemented preventing Indigenous people from leaving the reserve to hunt, fish or trap, seek employment or even visit their children in other places, such as residential schools, without first obtaining the permission of the local Indian Agent, which often could be quite arbitrary. This lasted until the 1950’s. In effect, Indigenous peoples lost their freedom, and control over their affairs, as they were confined to slivers of what had been their vast land. [Emphasis added].

As importantly the Court’s acknowledgement of systemic racism against First Nations and Indigenous people was the Court’s recognition of how this systemic racism was not theoretical but caused real world harm to both the victim and her son.  Justice Martin wrote

The ruin of the First Nations and peoples of Canada is not just statistics — as seen here, it is real pain. As a human, Mrs. McKay deserved better. And, like anyone born in this bountiful country, her son, her killer, deserved a better start, a better chance, in life.

This acknowledgement of Canada’s systemic racism against First Nations and Indigenous people is a good step forward and hopefully we can move towards reconciliation and the construction of societal systems that include First Nations and Indigenous people and not cause harm and “ruin”.

The Full Text of the Decision Can Be Found Here:

http://www.manitobacourts.mb.ca/site/assets/files/1042/r__v__mckay_2020_mbqb_106.pdf

* Christina J. Cook is a First Nations lawyer and member of Brokenhead Ojibway Nation.  Christina is a civil and corporate lawyer and does not practice criminal law; however, she does try to keep up to date on First Nations and Indigenous legal issues.